First of all many thanks to all of you that keep posting in this forum and answering to our questions. Your advices were helping me fighting for my rights.

I am in Germany with GC since 2003 in Hamburg. I wanted to get my visa changed according to the new law because I didn't want to get through this procedures when I changed my employer and I wanted to get a written Arbeitserlaubnis for my wife.

What I got for me is "Beschäftigung erlaubt als IT-Fachkraft. Die Aufenthaltserlaubnis erlischt mit Beendigung der genannten Beschäftigung.". This was done according to § 46 (2) BeschV.

The same I obtained for my wife according to § 29 (5) AufenthG.

All these were obtained after a lot of discussions and argumentations. I didn't get it for both at once. I had to go 2 days there with new arguments. It was decisive that I presented the printed law paragraphs and in my case the "Letter from BMI". For my wife I had to present myself in the second day with a written Antrag, because I wanted some official answers and not the stupid bla-bla unargumented refusals. They finally decided that they will change her visa as well after that.

Initially they intended to give me a visa bound to the company. This was changed after I explained that my rights are unlawfully restricted by such a visa, that they create me problems when I change the employer, that this is not the spirit of the new law and I showed them the "Letter from BMI".

For my wife, they wanted to change the visa only after she gets a specific contract and fills in some formulars. They said that these formulars are sent to AA for approval, but that these procedures will not take very long (LoL, they just wanted to get rid of us). I explained them that according to the "BMI Anwendungshinweise", AA should not be consulted as long as I have a visa that allows me to exercise a Beschäftigung without the need of the consultation of AA. Finally they agreed but they did not want to give her allowance for any Beschäftigung, but only for IT, like me. Luckily for us that she works also in IT...

I think that for my wife I could have got "Beschäftigung erlaubt" because in the "BMI Anwendungshinweise" it's written that restrictions to the husband domain should not be transferred to the wife in the case of § 29 (5) AufenthG. I showed them this paragraph, but they told me that this applies only in the second situation specified by 29(5), namely after we live 2 years maried in Germany. This means that I can still go there after this term and get for her "Beschäftigung erlaubt".

Some of the most astonishing arguments presented against my requests:
1) She cannot give me a visa wihout the company name in it, because her template contains the 'bei ...' specification, which means that she has to write something there, she cannot leave an empty space after "bei". After 1 minute discussing with somebody at the phone, she found out probably that she is allowed to use "Backspace"...
2) BeschV was adopted on 22.Nov.2004 so this is very old and not any more valid after 01.01.2005.
3) Question: where did I get the "BMI Anwendungshinweise"?
Answer: From Internet.
Their comment with a dissapointed face: yeah, in our days you can get anything from Internet.

One more notice to this long post: it was sadly proven to me that all this trouble is caused not because of not understanding the law or because we do not have some rights, but because some Beamter really does not want to apply the law. I have 4 more colleagues that got all these rights in an instant 2 days after us, for them and for their wifes, all in exactly the same situation as us, but they simply did not go to this Beamter. Now I know this and next time I will avoid her.

hi shoppi,
Congratualation for getting BE although with so much argument. I am also in a similar situation. I have been here since may 2003. and my wife still doesnt have permission to work. partly coz we never applied for it..but I am planning to apply for work permit for my wife in the coming days!!
my question is: did u apply after completing 3 yrs in DE? and where do u live?
and do u have links of all the documents that u presented to them?
if so, please drop me a mail at bizzare03@hotmail.com

thanks a lot.

Shoppi,

I am a bit confused, what happened at the end of your visits, which "auflage" do you have on your Aufenthaltstitel written now ?

"Beschäftigung erlaubt als IT-Fachkraft. Die Aufenthaltserlaubnis erlischt mit Beendigung der genannten Beschäftigung.".

or only

"Beschäftigung erlaubt"

Please clarify.

I am for less than 2 years in Germany so I have now "Beschäftigung erlaubt als IT-Fachkraft. Die Aufenthaltserlaubnis erlischt mit Beendigung der genannten Beschäftigung.". I could not obtain more for me at this moment. Even the Beamter told me that I will be able to get BE but only after I make 3 years working in Germany.

I know GC cases that got "Beschäftigung erlaubt" even before 2 years in Germany, but I think that this is rare and because of a very kind Beamter. You can try anyway...

The same as me has my wife now. I think that for her I could get more but I did not need it and I already had enough fights.

The wife can get an Arbeitserlaubnis from the first day in Germany. Her specifications depend on what the husband has. This means no necessity of Zustimmung from AA.

The law for the wife is:
http://www.aufenthaltstitel.de/aufenthaltsg.html
Chapter § 29, paragraph (5)

Along with the law, you can use the "Vorläufige Anwendungshinweise des Bundesministeriums des Innern zum AufenthG und zum FreizügigkeitsG/ EU" that you can get from:
http://www.fluechtlingsinfo-berlin.de/download.php?op=getit&lid=122

In the Anwendungshinweise read 29.5.2.3 and 29.5.4 about how to apply §29(5) AufenthG. The 29.5.4 here sais that the domain restriction should not be transferred from the husband to the wife. 29.5.2.3 sais that if the husband is entitled to Beschäftigung without needing the approval from AA, so should be the wife.

Be careful that the Anwendungshinweise are not law. They are only internal indications how to apply it and even more, they should not be public! The most you can do is to indicate to the Beamters the related paragraph s.t. they will not spend hours searching it ;-)

You should not try to get all at once. First obtain your visa change, fight to get as much as possible and do not accept bindings to company or specific job. After that, go in a second day with your wife because her specifications depend havily of what you get and in my case I had the feeling that going with both requests at once confused the Beamter and made her think twice how much she should give me.

Shoppi,

Thanks for pointing out to the document below, very interesting, i never saw that before.

"Vorläufige Anwendungshinweise des Bundesministeriums des Innern zum AufenthG und zum FreizügigkeitsG/ EU"

Hi Shoppi..,

Thankx very much for sharing your experience..,
infact I am also from Hamburg and I had put earlier a posting of my experience.

http://www.trust7.com/en/forums/visa_questions/arbeitsberechtigung_for_spouse_after_2_years

Can you tell me which ABH you had been in Hamburg Mitte ,Nord ?? as I am from Mitte and I plan to visit ABH as per your findings of § 29 (5) , It could be nice if I can get in touch with you.

my e-mail address..

binoy_vr@hotmail.com

Thanks again,
Binoy

I was in Hamburg Wandsbek. If you don't mind, I would answer to all the questions on the forum, since public answers were those that helped me solve my problems.

Initially they told me as well that my wife has to come only after finding an employer and filling some formulars they gave us. These formulars should go to AA for approval.

But once you get a visa that allows you to find a job without approval of AA, the law states that your wife has the same rights, so the formulars' procedure does not apply to the GC wifes. This has to be stated clearly in our wifes' visas so something like "Erwerbstätigkeit nicht gestattet" seems to me very much not according to the law.

No problem, we can discuss here, I will be going tomorrow morning to the ABH and just to clarify apart from Chapter § 29, paragraph (5) and the Anwendungshinweise which you have mentioned above , do I have to refer to anything else to support my argument. I feel, after my first experience its not going to be easy. Anyway I will keep posting of the developments.

Thanks,
Binoy

Hi Binoy,

I think you should chage your visa first, according to the new law. Since you are here since 2001, you should be able to get without any problem at least "Beschäftigung erlaubt". After that, you should apply for your wife by simply showing what kind of visa you have.

I know it sounds illogical, but it is easier to explain only her rights based on what is written in your passport, instead of explaining the rights of both of you together.

As I said before, if you have "Beschäftigung erlaubt" in your pass, the same should get your wife. You have even one more argument, the fact that you lived married for more than 2 years in Germany.

One more thing: if you had a bad experience with one Beamter before, try to enter to somebody else.

Good luck tomorrow.

I understand that your wife got her new visa this year. You have to make it clear to the Beamters that what they put in her passport "Erwerbstätigkeit nicht erlaubt" is completely against the law, §29(5), since you have the right to exercise a job without Zustimmung from AA and you are in Germany since more than 2 years married.

You are right I will do step by step first talk my case and then following that my wife's case. It is confusing if all together.

Last time they had mentioned I can get "Beschäftigung erlaubt" but then they also told by Jan you will get NE so take that at that time.
But now I am again facing a problem that my company is taken over , so I have to change to BE as I will be shortly getting a new contract, so can't wait till Jan for NE.

Thanx for ur hints..! The Beamterin was nice last time but only thing was she was not clear with the law, but the other colleague sitting opposite to her was rough, was not even allowing her to refer, but she still refered it to the chef and the chef came out with the findings I had posted. Its strange even the top Boss at ABH is not clear !

We really have to do some homework of what we want!
Thanx for the suggestions !

"Die Aufenthaltserlaubnis erlischt mit Beendigung der genannten Beschäftigung."."

you have got almost nothing. your residence permit will be only valid if you change companies in a way that you will not be unemployed even during 1 day. 1 day of unemployment makes your residence permit invalid.

I am not sure that this interpretation is correct. Do you know some written stuff about that, or it is just a feeling? If this would be so, then my wife should leave Germany the next day she got this visa. She has the same text in the passport, but she does not have a job yet.

I will try to get an official answer the next time I'll go by Ausländerbehörde.

Hi Shoppi.,

Today I had been to ABH and me and my wife both got BE...and that too without any arguments. I just had to tell what I wanted ,He told us to wait outside and sitting outside I was building up my arguments,after about 20 mins he called us in.., and hey what a surprise ,He told u'll both will be given 'Beschäftigung erlaubt'..

First time I met a Beamter and not a Beamterin and it was a gr8 experience )...!!

Thanks for starting this thread, your findings had initiated us to go today and it has been of gr8 help.

Thanks
Binoy

Binoy, I'm very happy for you. Your success is a proof that it works this way.

"If this would be so, then my wife should leave Germany the next day she got this visa. She has the same text in the passport, but she does not have a job yet."

if she did not find a job yet, she could not possibly lose it -> those condition that i pointed out could not possibly come in effect


I will interpret the conditions so that it will be more clear ;) it is written:

Employment as IT-Specialist is allowed. The residence permit expires with completion of the abovementioned employment.

Situations:

1. Person does not have a job yet. The residence permit can not expire, because no employment can be lost when the person is unemployed.
2. Person has a job, changes it in a way that he will not be unemployed during the change. Then his employment as IT-specialist will not be lost, lost will be only employment for particular company -> the residence permit does not expire
3. Person loses a job and finds another one, in the meantime however will be unemployed. Then the residence permit expires, because his employment as IT-specialist was lost

i applaud your officials. they found a way to leave one thing - the one that is important for them and that they didn't want change despite all your knowledges and papers - in the way it was, still managed to persuade you that you have got what you wanted. and nobody can say that they did not follow the instructions that were outlined in the letter of BMI


Hint: if a person is not stupid, in such a case he will claim vs. any cancellation of the work contract. then their employment is lost only when the court of law confirms that, and the decision of court of law becomes final.

Hint Nr. 2: this argument could be brought to officials in the immigration office, to make them just do their job right. preferrably in written and with a tip that you will give your employer a copy of the letter, so that he will know who is responsible for the claim and for connected expenses. i guess it would be a much more effective mean than pointing out on different laws and paragraphs ;)

Could you guys please send me the Letter from BMI for BE? at gbcertified@yahoo.com

@vicky

forget that letter.
it is not important as law and VAH (Usage Manual).

BMI letter is much worse than law because it states that visa erlischt if you lose job.
it is same as a binded visa.

so in short:
it is good to have in your pass:
- Besch erl
or
- Besch als IT Fachkraft erlaubt
but it is same if you have visa binded to firma:
- Beschäftigung erlaubt als IT-Fachkraft in Firma xxx. Die Aufenthaltserlaubnis erlischt mit Beendigung der genannten Beschäftigung
and if you have erlischt without binding:
- Beschäftigung erlaubt als IT-Fachkraft. Die Aufenthaltserlaubnis erlischt mit Beendigung der genannten Beschäftigung


it is even better to have visa binded to firma but without erlischt than nonbinded vissa mit erlischt:
- Beschäftigung erlaubt als IT-Fachkraft in firma xxx.



so vicky forget BMI letter and do not mention it because in this letter they say that IT visa should be unbinded but with erlischt and that is bad. Stick to the law (§46.2 BeschV) and you could get IT BE without erlischt

this letter is not law anyway so it is not of use on court